The application of 'informal' international instruments before domestic courts: The case of Japan

The application of 'informal' international instruments before domestic courts: The case of Japan

Every year a voluminous number of international instruments, which are neither part of treaties nor of customary international law, are produced by international organisations, treaty-monitoring bodies, informal gatherings of states, and transnational private organisations. Many of these instruments are adopted with the expectation that certain actions should be taken at the domestic level.

In this presentation, Machiko Kanetake discusses the application by domestic courts of 'informal' international instruments, which are neither internationally binding, nor formally given effect under domestic law. More specifically, she talks about (i) the kind of instruments employed by the courts, (ii) the purposes for which instruments are used, and (iii) the possible justification for the authority of domestic courts to employ informal instruments. In this seminar she focuses on the case of Japanese courts, and refers to other states' practices for comparative purposes.

In general, Japanese courts are reluctant to employ informal international instruments in their reasoning. Nevertheless, there are several noteworthy court decisions, especially in lower courts, which have found the interpretive use of informal instruments, such as General Comments issued by the UN Human Rights Committee and UN General Assembly resolutions. From the limited survey of domestic court decisions, this presentation demonstrates that the domestic courts have not been unaffected by the international expectation towards domestic organs to materialise informal international instruments within the domestic legal order.

ABOUT THE SPEAKER
Machiko Kanetake is a Postdoctoral Researcher at the Amsterdam Center for International Law (ACIL). She specialises in United Nations law, international organisations law, and interactions between national and international law. At the ACIL, she coordinates the research project on the interfaces between international and national legal orders. As part of the project, she has been conducting research on the application of international law and informal international instruments before Japanese courts.

Machiko received her Ph.D from Kyoto University, and LLM from the London School of Economics and Political Science (LSE). During her doctoral study, she was appointed as a Hauser Visiting Doctoral Researcher (2010-11) of the Global Fellows Program at New York University (NYU) School of Law.

Lawyers/barristers: attendance at this seminar is equal to 1 MCLE/CPD unit.